Living in Florida gives one an excellent opportunity to live and work near
water. And, as with any occupation, those jobs on or near navigable waters
will sometimes involve injuries to workers. When such a worker is injured,
there is always the question of whether the injuries will be covered under
the Florida workers’ compensation laws or the federal Longshore
and Harbor Worker’s Compensation Act.

You may be asking, “What difference does it make?” While both
sets of laws provide for medical treatment and certain disability payments
to the injured worker, that may be where the similarities end. The definition
of “injury”, the burden of proving the extent of the injury
related to the work accident, and the specific type/amount of benefits
that are available can be very different depending on the facts of the
case. For instance, if it is important to the injured worker to be able
to choose his or her own doctor, then the worker will need to prove entitlement
to Longshoreman coverage. Florida workers’ compensation law gives
this right to the insurance company.

Often times, there are arguments in a case that can support coverage by
either set of laws. So, how does one decide whether a claim should be
covered by Florida work comp versus Longshoreman law? A recent case decided
by a Florida Judge of Compensation Claims (JCC) gives some insight into
the answer to this question.

The case is Huelsman v. W.F. Davis Marine Const. (OJCC Case No. 16-001455RLD,
9/30/16) and it involved a construction worker building a pavilion on
dry land that was to be eventually connected to an existing dock reaching
out over a bayou. When scaffolding broke, the worker fell and sustained
multiple serious injuries including a neck fracture. He was airlifted
to the hospital and underwent surgery the next day. Medical treatment
was ongoing and extensive, and the recovery time for his injuries resulted
in long periods of disability. There was no dispute that the injury should
be covered and that such coverage would result in large amounts of money
being paid out for both medical expenses and the temporary disability
benefits to the worker while he recovered. But, who should pay this claim
and what law should apply?

The JCC reviewed the facts of the case and found Florida workers’
compensation law would apply in this case. Longshoremen’s and Harbor
Workers’ Compensation is intended to cover an employee injured while
working “upon the navigable waters of the United States (including
an adjoining pier, wharf, dry dock, terminal, building way, marine railway,
or other adjoining area customarily used by an employer loading, unloading,
repairing, or building a vessel.” Title 33 U.S.C. s 903(a). Additionally,
an employee under Longshoreman law is defined as “an person engaged
in maritime employment, including any longshoreman or other person engaged
in longshoring operations and any Harbor worker including a ship repairman,
shipbuilder and shipbreaker, but such term does not include a master or
member of a crew of any vessel, or an person engaged by the master to
load or unload or repair any small vessel under eighteen tons net.”
Title 33 U.S.C. s 902(3).

Read together, the judge found these federal statutes provide a two prong
test for whether a case should be covered under the Longshoreman’s
and Harbor Workers’ Compensation Act. First, the site of the injury
must be upon navigable waters, including any adjoining pier, and second,
the job of the injured person must be maritime in nature. (For a more
in depth discussion about this two prong test in another case, see Hernandez
v. Mike Cruz Machine

Applying this two prong test to the facts of the Huelsman case, the JCC
found the site where the accident happened was not on navigable waters
or any adjoining pier. Although the bayou was indisputably navigable waters,
Mr. Huelsman was on scaffolding building a pavilion on dry land away from
the dock. The fact that the pavilion was to be eventually connected by
walkway to the dock extending over the navigable waters was found insufficient
to satisfy the first prong. Although other projects being performed by
the employer were on the same waterway and had been performed from company
owned barges, Mr. Huelsman was not working on a barge or dock, or even
near the dock at that time of his accident.

Since the work was found to not have been performed on navigable waterway,
the next test is whether Mr. Huelsman was engaged in maritime employment
at the time of his accident. “Aside from employees engaged in shipbuilding,
ship repair or ship-breaking, …the general category of coverage
as a harbor- worker as including employees directly involved in the construction,
repair, alteration or maintenance of harbor facilities (which includes
docks, piers, wharves and adjacent area used in loading, unloading, repair
or construction of ships.”) Kerwin Temple v. Global Construction
& Equipment, 2012 WL 11944408. The JCC found the job being performed
by Mr. Huelsman did not fall into this category of work.

Since accident/injury is not covered under the Longshoremans’ and
Harbor Workers’ Act, Mr. Huelsman, for better or worse, finds himself
in the Florida Workers’ Compensation system and all that this entails.

If you have been injured on the job and have questions about your rights,
contact Syfrett, Dykes & Furr for a free consultation. (850) 795-4979.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.

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